Khan v Celtrock Holdings Ltd [2014] FJHC 51; HBC23.2014S (7 February 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 23 of 2014S

BETWEEN:

RAMEEZ ZAVEER KHAN
of 22 Vatudina Road, Muanikoso Housing, Nasinu, Company Director.
Plaintiff

AND:

CELTROCK HOLDINGS LIMITED
a company incorporated in Fiji and having its registered office at Suva.
1st Defendant

AND:

SEA QUEST (FIJI) LIMITED
a company incorporated in Fiji and having its registered office at Suva.
2nd Defendant

APPEARANCE : MR SINGH V. with MR PARSHOTAM for the Plaintiff
MR FA I. for the Defendants

DATE OF RULING : 7th February, 2014

RULING

1. During the hearing of summons filed on 31st January 2014, the counsel for the Plaintiff referring to the documents marked L and W to the Affidavit in Support divulged that the said two documents were not stamped and he undertook to pay the stamp duty within the prescribed time period and made an application to use the discretion of this court to consider the said two documents for the purpose of this case.

2. The counsel for the Defendants stated that the stamp duty matter was brought up today and was not divulged to the court or to the Defendant and without filing an Affidavit, this court should not use its discretion and pursuant to Stamp Duty Act discretion cannot be used by this court.

3. In reply the Plaintiff referred to Stamp Duty Book of NSW (13710) Section 29 which states:

"one of the most important sanctions imposed on parties is the inability to admit that document in evidence hence making it effectively unenforceable."

(13,715) under the heading who can give undertakings to the court regarding unpaid stamp duty? It states:

"from January 1991, a new Section 29(4) inserted so that anyone who is not the person primarily liable to pay the stamp duty on an unstamped document may tender that document as evidence if they satisfy the court that-

• They have informed or will inform the Chief Commissioner of the name of the person liable to pay stamp duty on the document; and
  
• They will lodge the instrument or a copy with the Chief Commissioner in accordance with arrangements approved by the court."
  

4. The counsel for the Plaintiff stated that Document is lodged with the Commissioner and Document stamp duty to be assessed. However, there is no evidence before me to that effect and I am unable to use the discretion to accept the undertaking by the Solicitor at this juncture. However, I conclude once the evidence is placed before this court that the documents are tendered to the Commissioner for stamp duty this court is entitled to use its discretion.
5. In the circumstances, I make the following directions:

(a) The Plaintiff to submit evidence that the documents were tendered for stamping before 12th February 2014;

(b) The matter to be heard subsequent to filing of the Affidavit to the effect that the documents were tendered for stamping/evaluation for stamp duty to the Commissioner for Stamp Duty;

(c) Hearing fixed for 12th February 2014 at 2.30pm.

Delivered at Suva this 7th day of February 2014

C. KOTIGALAGE
JUDGE